DEPARTMENT OF THE NAVY 
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-PFC, USMC
Docket No. MD01-00472

Applicant’s Request

The application for discharge review, received 010227, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing review before a traveling panel closest to New York, NY.  The applicant did not list a representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC area and the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011218.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Will I work to the best of my ability to the day of my discharge.  Yes I made a mistake but my superiors use me as an example even when there were people that pop positive at times before they were release from serves.

2.  I believe that my command has perform an in justice to cover up their faults & so they pick me to make then scores look good because things were going so bad for them.  The "CO" was under the wire and I know he needed somebody to give all his rubbles to; I work with him in the company office for a few morns so I got to see what was going on.

3.  I ask for chance to start my life over.  I can't even get a job here look I'm sorry I did what I did but I hope you can understand.  I have to help my family and this is not letting me do so.  I loved the Corps.  I wish I could had stay in.  I hope you can help.  Thank You (Signed - Applicant)

Documentation

Only the applicant service record reviewed.  Applicant's medical record could not be located and the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USMCR(J)		981230 - 990104	COG

Period of Service Under Review:

Date of Enlistment:  990105		Date of Discharge:  000818

Length of Service (years, months, days):

	Active:    01  07  14
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  11			AFQT:  32

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (4)		Conduct:  4.3 (4)

Military Decorations:  None

Unit/Campaign/Service Awards:  Marksman Rifle Badge

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

981229:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

000407:	NAVDRUGLAB Jacksonville, reported applicant’s urine sample, received 31MAR00, tested positive for marijuana.

000420:	Medical evaluation: Pt declined to answer drug…questions.  Individual should he held accountable for his action.  

000420:	Applicant acknowledged understanding of treatment substance abuse at the VA Medical Center and that if he should require assistance for substance abuse problem after discharge, he needs to contact local VA Medical Center.

000504:	NJP for violation of UCMJ, Article 112: on or about 31 Mar 00, wrongfully used marijuana.
Awarded forfeiture of $500.00 per month for 2 months, restriction and extra duties for 45 days and reduction to E-2.  Not appealed.

000514:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis on 31 Mar 200 and battalion NJP.

000514:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000514:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was positive result of urinalysis dated 31 Mar 2000.  

000721:	SJA review determined the case sufficient in law and fact.

000724:	Counseled for deficiencies in performance and conduct [improper use of government computer by forwarding a chain letter to the worldwide address book].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000731:	GCMCA [CG, 2D MARDIV, II MEF, Camp Lejeune] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000818 under other than honorable conditions for misconduct due to drug abuse (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

Issue 1.  The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions.  His performance prior to the drug abuse doesn’t mitigate his use of illegal drugs.  The discharge was proper and equitable.  Relief denied.

Issue 2.  The applicant provided no verifiable documentation that his command treated him in a way that prejudiced the characterization of discharge he received.  Relief denied.

Issue 3.  The Board has no authority to upgrade a discharge for the purpose of enhancing employment opportunities as requested in the issue.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide any documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 to Present. 

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article [ e.g., Article 86, unauthorized absence for more than 30 days].

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Directive 1332.28 and other Decisional Documents by going online at “afls10.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023